Kelly vs. Sulivan.

by him with the advice and consent of the Council and Assembly of the Island. And as soon as the situation and circumstances of the Island would admit thereof, and as soon as need should require, he was to call General Assemblies of the freeholders and planters to be called the Assembly of the Island, and by the consent of the Council and Assembly he had power to make laws for the good government of the Island. By the instructions, he was to constitute a Council to assist him in the administration of the affairs of the Colony, and the Council to have all the powers and privileges and authority usually exercised in the other American Colonies.

He was to give his immediate attention to the establishing of such Courts of Judicature as might be found necessary for the administration of justice. He was to consult the Chief Justice as to the measures proper to be pursued for the purpose, governing himself as far as difference of circumstances would admit by what had been approved and found most advantageous in Nova Scotia. He was to transmit to the Secretary of State copies of all Acts, orders, commissions, &c., by virtue of which any Courts, Officers, Jurisdictions, &c., were established.

The consideration of calling a Lower House of Assembly could not too early be taken up.

There is no authority in his commission or instructions directing him to establish a Court of Error or Appeal, nor to permit or allow appeals to himself in Council.

The commission of Guy Carleton, afterwards Lord Dorchester, appointing him Governor of the Province of Quebec, dated 12th April, 1768, is similar to that of Governor Patterson, which was dated 4th August, 1769. It appoints him Captain General and Governor in Chief

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of the Province of Quebec. His instructions differ somewhat from those afterwards given to Governor Patterson and as to summoning a general assembly of freeholders as soon as the more pressing affairs of Government would allow, stated as it was impracticable to form such an establishment then; he was to make such rules and regulations with the advice of the Council as should appear to be necessary for the peace, order and good government of the Province.

He was to establish Courts of Justice, and consider what had been established in that respect in the other Colonies in America, particularly in Nova Scotia.

He was to allow appeals from any of the Courts of Common Law to the Governor in Council, and for that purpose was to issue a writ in the manner which has been usually accustomed before himself and the Council who were to proceed to hear and determine such appeals. (As already mentioned, no such direction or authority as this is contained in the commission to Governor Patterson.)

His second appointment as Governor of Quebec was by a commission, dated 27th December, 1775, after passing of the Imp. Stat. 14 Geo. III, ch. 83, for making more effectual provision for the government of the Province of Quebec. Following the provisions of the Imp. Stat. he was authorized, with the consent of the Council, to make ordinances for the peace, welfare, and good government of the Province, with certain exceptions as to ordinances imposing taxes. He had authority to appoint Judges, &c., as in his former commission.

Under his instructions he was directed, by and with the advice of his Council, to establish Courts of Justice. Suggestions were made as to the kind and

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number of Courts-but he was to be guided by circumstances, and amongst other suggestions as to what should be done, was the following, viz: That the Governor and Council should be a Court of Civil Jurisdiction for the hearing of appeals from the judgments of the other Courts when the matter in dispute exceeded ten pounds. The decision of the Governor in Council to be final in cases not exceeding £500 stg., in which case an appeal from the judgment to be admitted to the King in Council. An ordinance was passed by the Governor in Council, on 25th July, 1777, establishing certain Courts according to the suggestions contained in the Royal instructions, and under that ordinance the Governor in Council was constituted a Court of Appeal. On the margin of the Ordinance in the copy in the Library of Parliament here, there is the following entry in manuscript: "vide "ordinance of 17th September, 1773, passed on Ch. J. Hayes going home." It was the model of this and the next ordinance in some instances. The next ordinance was to regulate the proceedings in the Courts of Civil Judicature in the Province of Quebec. From this it appears that before the Act of 14 Geo. III, and the commission and instructions under it were given, the Governor in Council had passed an ordinance to establish a Court of Appeals in Quebec. And this under a commission and instructions similar to that under which Governor Patterson was acting in Prince Edward Island, except so far as the power to grant appeals was wanting in the instructions to Governor Patterson which was contained in the instructions to Governor Carleton.

In August, 1769, the commission to Governor Patterson was issued, and he is said to have arrived in

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the Colony in 1770. The first meeting of the Legislature composed of the Council and Assembly, with the Governor of course, was, according to Stewart's History of Prince Edward Island, p. 177, in 1773, and the first Statute, as appears by the Acts of the General Assembly of the Island, published in 1862, was passed in 1773. It is entitled: "At the General Assembly of His Majesty's Island of St. John, begun and holden at Charlottetown, the seventh day of July, Anno Domino 1773, in the 13th year of the Reign of Our Sovereign Lord George the Third, by the Grace of God, of Great Britain, France and Ireland, King, Defender of the Faith. Being the first General Assembly convened in the Island."

The first statute passed recited that it had been found absolutely necessary and expedient by His Majesty's Governor in Council of the Island to make several resolutions, ordinances and regulations for the good government of the said Island; it then repeats these ordinances, and confirms what was done under them.

Cap. 2, is entitled "An Act to confirm and make valid in law all manner of process and proceedings in the several Courts of Judicature within this Island from the first day of May, 1769, to this present Session of Assembly. The recital states:

"Whereas this Island has been without a complete Legislature from the commencement of the Government. thereof which took place on the first day of May, 1769, unto this present Session of Assembly, during which time many and various proceedings have been had at the several Courts of Judicature in the Island." It then declares the writs, judgments and proceedings in the Courts from and after the said 1st May, 1769, to the end of that Session good and valid in law. That it should

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not extend to take away or rectify errors in the using of process, mispleadings and erroneous rendering of judgment in point of law, but in all such cases the parties aggrieved might have their writ or writs of error upon such erroneous judgment in such manner as they might have done before the making of the Act.

Governor Patterson apparently remained Governor until 1786, when he was succeeded by Governor Fanning, who continued in office, it is said, for nineteen years, that would be until 1805.

Governor Patterson was authorised by his commission with the advice and consent of the Council, to establish such and so many Courts of Justice within the Island, as they should think fit for determining causes as well criminal as civil according to Law and Equity, and to constitute and appoint Judges, and in cases requisite to issue commissions of Oyer and Terminer. We have nothing to shew that in Governor Patterson's time, any Court of Error or Appellate Court was established by any Act of his. And it seems admitted that, as a matter of fact, no such Court ever exercised any jurisdiction in the Island, and no case was ever brought before such a Court. If it had been established under any ordinance of the Council before the first sitting of the Legislature, we have not been referred to any such ordinance. It is shewn by Statutes passed at that sitting, that Courts of Judicature had before that been established and they have been continued ever since. As to those Courts that have been exercising their functions and powers ever since, with legislation from time to time with reference to them, they would no doubt be considered as established tribunals and as having been legally established. But when it is contended that so important a tribunal as a Court of last resort exists in a Province, it should be